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Post by jackmann on May 21, 2011 22:28:06 GMT -5
There's two issues there, and neither was improper procedure. First, police can follow a suspect into a home if the chase began in public. (This one did. The police went into the wrong apartment, granted, but they did not know that. They had a 50/50 chance of the right one and just picked wrong.) Second, police do not have to disregard evidence of illegal activity if that evidence is in plain sight. (If an officer walks by a house, looks through the window, and sees people bagging cocaine, the officer can use that as probable cause for a warrant. The officer does not have to ignore it because they did not have have a warrant when they looked in the window.) I would agree IF they actually bothered to get a warrant. If that's where they genuinely believe the chase was going, then I would agree with them going into that apartment. But as long as it's the wrong apartment, the evidence shouldn't be admissible because it wasn't found in an actual search. Now if the chase went into that apartment, cops pretended not to see drugs, but used the eyewitness account to obtain a warrant and come back, I would totally agree with that. Or if the chase legitimately went into that apartment. I just take issue with the idea of cops entering a private area without permission, and/or creating their own exigent circumstances, and then using that to gather evidence without a warrant. Plain view doctrine. They can seize evidence without a warrant, so long as it's in plain sight. The evidence was in plain sight when they entered the apartment (lawfully, as we've already discussed). Now, it mentions a subsequent search. If that happened without a warrant, then the officers are in the wrong. The plain view doctrine has certain limits. They can't move things to get a better view. They have to have lawful access (in this case, they were in the apartment in hot pursuit, giving them said access). The incriminating nature of the evidence must be immediately apparent. |
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Post by wmdkitty on May 21, 2011 23:21:52 GMT -5
Hell, I think just smelling marijuana is enough to establish probable cause. Legally, it isn't probable cause. Neither is a cloud of smoke. And it shouldn't be considered probable cause, either, because there are perfectly legal reasons for both. A person could be burning cannabis-flavored incense (yes, this is a real thing). A person could just be a heavy smoker, and thus generate a cloud of smoke. |
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Post by Shane for Wax on May 21, 2011 23:35:15 GMT -5
Hell, I think just smelling marijuana is enough to establish probable cause. Legally, it isn't probable cause. Neither is a cloud of smoke. And it shouldn't be considered probable cause, either, because there are perfectly legal reasons for both. A person could be burning cannabis-flavored incense (yes, this is a real thing). A person could just be a heavy smoker, and thus generate a cloud of smoke. I think the PDF stated that was probable cause and I also believe it to be as such too. Also... the point of incense is to smell nice, not make it smell like armpit. |
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Post by m52nickerson on May 22, 2011 0:06:19 GMT -5
OK the fourth amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I don't think it was unreasonable for the police to enter an apartment in which they though someone they were chasing went.
I also do not think it is unreasonable for the police to conduct a search after they see drugs in plain sight.
....and wmdkitty just because cannabis scented incense is legal that does not mean its smell would not constitute probable cause. I guarantee that most of the time a police office smells weed, it is weed. By most of the time I mean 99.99%.
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Post by wmdkitty on May 22, 2011 0:24:31 GMT -5
And I guarantee you that a smell has been ruled to NOT be "probable cause".
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Post by John E on May 22, 2011 0:30:47 GMT -5
If I have a special effects knife complete with fake blood, and the police happen to see me through the window pretending to stab my wife, and it looks real to them, they've got probable cause to enter my house, even though I've done nothing illegal.
I would consider cannabis-scented incense to fall into the same category.
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Post by Shane for Wax on May 22, 2011 2:22:55 GMT -5
If I have a special effects knife complete with fake blood, and the police happen to see me through the window pretending to stab my wife, and it looks real to them, they've got probable cause to enter my house, even though I've done nothing illegal. I would consider cannabis-scented incense to fall into the same category. ^what he said. "I recall only one state that does not permit "plain smell" (so to speak), the others will allow smell to contribute to the establishment of probable cause which is not the same as permission). If I were to smell marijuana in the passenger area of your car, I could generally search it. Yes, I could lie about it ... but, why? Nothing can prevent an officer bent on turning rogue and committing a criminal act from lying about anything. Even plain view can be lied about. There is no absolutely objective method to evaluate any of these plain view/smell situations." www.expertlaw.com/forums/showthread.php?t=80714&page=1 |
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Post by Haseen on May 22, 2011 3:52:52 GMT -5
I'm back. Yeah yeah, I know... I decided to come back now that I'm a little less agitated.
One point I want to bring up is about intent. I'll grant that that the police didn't intend to create the exigency of destroying evidence, but they still did actually create it by knocking on the wrong door. As far as the people in the apartment are concerned, the police came in at a random time without a warrant. The chase was completely unrelated to them up until the police entered their private room.
If I didn't intend to speed, but I actually did, can I get out of a ticket by telling the officer I didn't mean to do it? I mean, after he stops laughing when I tell him I didn't mean to? So why would police, that actually did create the exigency without meaning to do it, somehow not have to meet the normal search requirements?
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Post by Dragon Zachski on May 22, 2011 3:57:33 GMT -5
I'm back. Yeah yeah, I know... I decided to come back now that I'm a little less agitated. One point I want to bring up is about intent. I'll grant that that the police didn't intend to create the exigency of destroying evidence, but they still did actually create it by knocking on the wrong door. As far as the people in the apartment are concerned, the police came in at a random time without a warrant. The chase was completely unrelated to them up until the police entered their private room. If I didn't intend to speed, but I actually did, can I get out of a ticket by telling the officer I didn't mean to do it? I mean, after he stops laughing when I tell him I didn't mean to? So why would police, that actually did create the exigency without meaning to do it, somehow not have to meet the normal search requirements? Because the police did not create the circumstances, the man fleeing them did. If you were speeding because you needed to avoid a boulder dropping from the sky, that would be a more appropriate comparison. |
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Post by Shane for Wax on May 22, 2011 5:08:11 GMT -5
Well the PDF did take a few pages talking about the fact that the Supreme Cort did not believe the police conjured up the exigency. “in some sense the police always create the exigent circumstances.” United States v. Duchi, 906 F. 2d 1278, 1284 (CA8 1990).
Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. See United States v. Santana, 427 U. S. 38, 42–43 (1976).
And—what is relevant here—the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search. Brigham City, supra, at 403; see also Georgia v. Randolph, 547 U. S. 103, 116, n. 6 (2006); Minnesota v. Olson, 495 U. S. 91, 100 (1990)
“[F]or a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves”; United States v. Gould, 364 F. 3d 578, 590 (CA5 2004) (en banc)
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Post by dasfuchs on May 22, 2011 5:30:46 GMT -5
Well obviously the courts are in on it too
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Post by Vene on May 22, 2011 8:02:11 GMT -5
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Post by erictheblue on May 22, 2011 8:43:27 GMT -5
So why would police, that actually did create the exigency without meaning to do it, somehow not have to meet the normal search requirements? The police did not create the exigent circumstances. The suspect did by running into an apartment. |
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Post by MaybeNever on May 22, 2011 13:47:06 GMT -5
I think "Exigent Circumstances" would be a good name for a nerdcore band.
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Post by Napoleon the Clown on May 22, 2011 14:07:26 GMT -5
Okay, let us play make believe: A suspect runs into an apartment. The police follow him. If they seem criminal actions occurring that are unrelated to the fleeing suspect, is that unreasonable search?
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